Citizens and organizations with gripes about proposed developments are continuing to win more big lawsuits based on the California Environmental Quality Act than they are losing. According to a CP&DR analysis, petitioners — who these days range from environmentalists to public agencies in dispute with other public agencies — have won 14 of 25 significant, published CEQA cases since 1996. And that record appears to be just fine with the state Supreme Court, which shows no interest in CEQA these days. Nearly 30 years have passed since California lawmakers and then-Gov. Ronald Reagan approved the California Environmental Quality Act, the law that sets the ground rules for studying and offsetting development's effects. But the law still remains open to interpretation, and environmental groups continue to use CEQA to halt government approvals of development. Since CEQA's passage in 1970, scores of appellate court cases and several state Supreme Court decisions have interpreted the law. Planners, lawyers and scientists now have decades of experience. But, even counting a late-August ruling for the City and County of San Francisco (see Legal Digest, page 7), groups and citizens filing CEQA lawsuits have compiled a winning appellate court record in recent years. Those victories stem from the fact that only a few of CEQA's fundamentals — such as when to perform an environmental impact report and when to go with a lesser degree of scrutiny — are clear cut, say CEQA practitioners on either side of the issues. While environmentalists are winning more often than not, a California Supreme Court that ranks as conservative by most standards has shown almost no inclination in recent years to overturn rulings favorable to environmentalists. In fact, the state's high court has issued only one CEQA ruling in the last four years (a 1997 decision that said de-listing an endangered species is not subject to CEQA review) and there are no CEQA cases pending at the court. In the 1970s, the state Supreme Court issued a number of rulings to define the law. During the recession of the early 1990s, the Deukmejian-appointed high court took a few cases to stem the tide of environmental litigation. But CEQA evidently is not a high priority for the court these days. The practice of CEQA law has gone mainstream since the 1970s and early 1980s, when only true believers fought to protect the flora and fauna from residential and commercial development. Legal practitioners said they are not surprised that people filing the lawsuits are winning more big cases than they are losing. "It's tough to win, but there are lots of agencies that are still confused about CEQA," said Susan Brandt-Hawley, a Sonoma-based attorney who takes CEQA cases statewide. "There are lots of open issues in CEQA." James Moose, of Sacramento's Remy, Thomas & Moose, agreed that CEQA "remains an evolving area of the law." "Petitioners can still win because it's impossible to predict what courts will do," said Moose, whose firm often defends government agencies. He said he has lost cases he felt positive about, and won cases where he was less sure. That turn may seem odd considering the large number of former prosecutors sitting on appellate court benches in California. "I assumed that every appellate court judge under 60 is a conservative Republican, but some of them are greener than you might think," Moose said.. Michael Zischke, of Landels Ripley & Diamond in San Francisco and the author of a CEQA practitioner's guide, also said the law has "lots of gray areas." Many nooks and crannies of CEQA remain only partially explored. Zischke, who frequently defends developers, pointed to the use of master EIRs for development that occurs over a long period, the treatment of historic properties, and determining an "environmental baseline" as three areas that remain less than black and white. Moose said case law is unclear on what precisely is required in an alternatives analysis. Also, what CEQA means for projects that decrease habitat for endangered species is another area that remains lightly litigated. What has changed since the 1980s, said Brandt-Hawley, is that government agencies now recognize that environmental review of development is something they cannot avoid. In the 1980s, environmentalists were still using the courts to establish the need for serious scrutiny of a project's effects, she said. Still, Brandt-Hawley warned not to underestimate CEQA's complexity. "What continues to surprise me is that most cases that I handle, even if it looks straightforward at the beginning, it turns out to have twists that I never expected," she said. In fact, one of her cases has opened a whole new area of CEQA law. In Stanislaus Natural Heritage Project v. County of Stanislaus, (1996) 48 Cal.App.4th 186, the court tossed out an EIR that deferred analysis of where the Diablo Grande subdivision and golf resort would get its water, and how transferring water would affect the environment. In July, Brandt-Hawley's partner, Rose Zoia, won the first round of Diablo Grande II when a Stanislaus County superior court judge said a supplemental EIR still failed to adequately address water issues. Moose said Diablo Grande I was very significant because it has led to a trend of working water planning into EIRs. Previously, EIRs only said the local water district had, or did not have, adequate resources to serve a proposed development, but provided no further analysis. The muddy waters of CEQA likely mean that litigation will continue for the foreseeable future. Another factor is the ability of many attorneys to turn themselves into environmental practitioners to fight a project they personally dislike. A decade or two ago, a small cadre of lawyers gained most environmental victories. But of the 14 major victories for petitioners in recent years, only one lawyer, Brandt-Hawley, has more than one win. She has won three major cases since 1996— shutting down Diablo Grande, forcing Oakland to prepare on EIR before demolishing an historic industrial building, and getting an EIR for a Monterey County dam declared inadequate. This summer, Brandt-Hawley convinced San Diego County Superior Court Judge Judith McConnell to halt work on the Padres new stadium until the city completes an EIR. In August, Brandt-Hawley won a CEQA-related case on non-CEQA grounds at the state Supreme Court. (See Legal Digest, page 6.) The court ruled that parties challenging the overriding considerations adopted by a local agency formation commission need not seek a LAFCO rehearing before filing suit. Contacts: Susan Brandt-Hawley: (707) 938-3908. James Moose, (916) 443-2745. Michael Zischke, (415) 512-8700.